Gammar v. Borgain, 27 Iowa 369

Gammar v. Borgain

27 Iowa 369 | Iowa | 1869

Wright, J.

I. A material question on the trial of the cause was, whether the alleged failure of the machine to answer the warranty was the fault of the implement or defendant. To this point the testimony was largely directed. One point made on this appeal involves the correctness of the court’s action in rejecting certain testimony offered by plaintiff upon this issue. Thus, they proposed to prove by several witnesses that they were acquainted with these harvesters; had used and owned them in 1867 and 1868, in the neighborhood of defendant’s residence-; regarded them as good grain cutting machines; that two experienced binders could do double the work upon them they could on the ground; that all the machines (those referred to by the witnesses and that delivered to defendant) were precisely alike, made by the same party, in the same shop, of the same material and workmanship, and that these others worked well and filled fully the conditions of the warranty; all of which testimony was rejected. As to the correctness or incorrectness of this ruling we are not in all respects agreed, and as the case must be reversed upon other grounds, and the question may not again arise, either upon the retrial, or in this court, we prefer to leave it undecided. And we are the more reconciled to this disposition of the case, as it is possible that the verdict turned upon other matters arising upon the instructions.

l. contract: ofpefforín-laoe ranty. II. In view of the pleadings and evidence there is scarcely ground to believe that the machine was delivered upon any other than the written contract, The answer admits the order, but says the harvester was not received at Cedar Falls at *372the time called for nor at cmy other time. A verbal agreement is then set up, made after the written order, not essentially different, except as to the flace where the machine was to be left if it failed to answer the purpose. But this is not alleged as a new and distinct agreement, nor is it averred that the machine was delivered under the same. That it was delivered at New Hartford, instead of Cedar Falls, is shown to have been for defendant’s accommodation and at his request. The pretense, therefore, that there was, in this respect, a departure from the written contract, is without foundation either in fact or in law. It was a part of defendant’s undertaking, by the written order, to return the machine to Cedar Falls if it failed to answer the warranty. An instruction asked by the plaintiff, that it should have been thus returned, if received under such order, though delivered at New Hartford instead of Cedar Falls, was proper and should have been given. Bomberger et al. v. Griener, 18 Iowa, 477. Then, too, if the machine was delivered upon this order, and, subsequent to its execution, there were additions made to it, by parol, plaintiffs could still recover. . That is to say, these additions to the written warranty, any further agreement as to where the machine might be left, or the like, would not make a new contract, and would not defeat the action, though plaintiffs declare upon the written or original contract, any more than the change in the place of delivery by the plaintiff with defendant’s consent. And this should have been clearly stated to the jury. Hpon this point it is quite probable, and indeed almost certain, the jury were misled.

3._contract constmed. III. The court instructed that the term “ experienced binders,” as expressed in the warranty, meant “ experieneed in binding on the grov/nd, and not experience(j ¿n binding on the Marsh Harvester.” To this construction of the language used in the warranty, *373appellants object. In our opinion the instruction was correct. The machine was for irse in the harvest field. It was to be used by the purchaser with hands such as are ordinarily and usually found and employed in our harvests. It was not contemplated that persons slcilled in binding on these machines should accompany and assist in running the same, if such skill is requisite, as seems probable from the position assumed by plaintiffs. Defendant was not bound to hunt for those, if any, peculiarly conversant with these machines and having special knowledge of how to bind on the same.

“Experienced binders,” without other words to qualify or limit their meaning, means those accustomed to do such work, and having the requisite knowledge, in the field, as grain was and is ordinarily cut and saved. Defendant, it is fair to presume, could secure such experience, whereas those experienced as binders ujpon the machine would be most difficult to obtain. The fair and reasonable view of the contract was therefore taken of it by the court. And yet it is proper that the jury should understand that a failure by “ experienced binders,” as thus explained, to at once do the double work spoken of, would not show, as of course, a breach of the warranty. •A fair opportunity should be given for them to become accustomed to the new position, and to familiarize themselves with the motion and working of the machine.

We only add that, in determining whether the machine did or did not work well, the jury might appropriately give more weight to the testimony of those engaged in the actual test, those who were present and -witnessed its work, than those who testify of its possible workings from an examination and comparison of it with other machines.

And yet, so far as such -weight might be left to depend upon the relative opportunities of witnesses to judge, it would be just as true that, other things being equal, *374the larger and more extensive the experience of a witness, the greater the reliance to be placed upon his opinion or judgment.

Because of the errors above noticed the judgment is

Beversed.